COVID-19: Economic Recovery and Relief from Environmental Regulation May Go Hand in Glove

K&L Gates
Tim L. Peckinpaugh, Cliff L. Rothenstein, Ankur K. Tohan and Molly K. Barker

May 26, 2020

On May 19, the President issued an Executive Order on Regulatory Relief to Support Economic Recovery (“EO”) in the wake of the lifting of COVID-19 shelter-in-place orders across the country. The EO directs all federal agencies to “rollback” regulations that are inhibiting economic recovery. The EO is open-ended on the timing so it could be in place for an extended period. It will undoubtedly have widespread impacts on how businesses plan and conduct operations and what their regulatory obligations will be going forward. For companies facing burdensome regulations or seeking a permit amid plummeting revenues, the EO may prove to be beneficial by providing them with an outlet for getting some regulatory relief or an expedited permit approval. For others, the EO may arrive as unwelcomed news due to the uncertainty and potential for litigation that it carries with it. In either case, our K&L Gates regulatory and policy teams can advise stakeholders on the opportunities and landmines they may face as the EO is implemented.

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Top 10 Things You Should Know About PFAS: Real Estate and Corporate Due Diligence

Holland & Knight LLP
Meaghan A Colligan, Amy L. Edwards, Paul C Sarahan, Nicholas William Targ and Dianne R. Phillips

May 1, 2020

Per- and polyfluoroalkyl substances (PFAS) present a new and potentially expensive environmental risk in real estate and corporate deals. Regulators are focused on developing standards for PFAS across the country. However, it is still uncertain at the federal level, and in many states, how PFAS will be regulated and to what levels. New risk-based research continues to be released showing that certain strands may pose risks to health and the environment. Additionally, many large-scale lawsuits have been advanced in the past several years seeking damages for personal injury, property damage and recovery of remediation costs under federal environmental statutes. At least nine federal enforcement actions and dozens of state enforcement actions have been advanced related to PFAS to date. As such, PFAS poses a major risk in transactions that, if not managed, can result in significant liabilities.

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Attention NJ Developers: NJDEP Adopts Amendments to Stormwater Management Rules Requiring the Use of Green Infrastructure

Riker Danzig Scherer Hyland & Perretti LLP
Jaan M. Haus

May 19, 2020

Reprinted with permission. © 2020 Riker Danzig Scherer Hyland & Perretti LLP

Last year, the New Jersey Department of Environmental Protection proposed significant changes to the State’s Stormwater Management Rules, N.J.A.C. 7:8 et seq. (the “SWMR” or “Rules”) that set forth standards and requirements for the management of stormwater runoff associated with major developments. On March 2, 2020, the amendments to the SWMR were adopted with only minor, non-substantive revisions to the original proposal. Most significantly, the amendments require major developments to utilize green infrastructure to meet the groundwater recharge and stormwater runoff quantity and quality standards. In addition, the amendments revised the definition of a “major development” in a manner that considerably expands the reach of the Rules. Developers should take note of these changes as they are fairly burdensome, and thus, likely to increase costs for new developments and construction projects. Notably, however, the SWMR amendments do not become operative until March 2, 2021 (one year from adoption).

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Six Highlights of EPA’s Proposal to Expand Reform of Guidance Documents

Covington & Burling LLP
Thomas Brugato

May 20, 2020

EPA on May 19 released a proposed rule that would put in place a set of regulations governing EPA’s issuance, modification, and withdrawal of guidance documents. This proposal implements portions of Executive Order 13891, and builds on EPA’s previous efforts to create a comprehensive portal of guidance documents earlier this year. Generally speaking, the stated purpose of the rule is to allow for increased transparency and public involvement in EPA’s guidance-formulation process, but the proposal also contains several key limitations.

Six specific aspects of EPA’s proposed rule, which illustrate its possibilities as well as its limits, are particularly noteworthy:

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NJDEP Proposes Major Revisions to Remediation Standards

Manko Gold Katcher & Fox
Bruce Katcher

April 8, 2020

In the midst of the COVID-19 crisis, the New Jersey Department of Environmental Protection (NJDEP) Site Remediation Program (SRP) published extensive proposed revisions to the remediation standards in the April 6, 2020 New Jersey Register. The proposal can be found here. Generally speaking, the major proposed revisions are as follows:

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PADEP Develops COVID-19 Guidance

Manko Gold Katcher & Fox
Thomas M. Duncan

April 8, 2020

The Pennsylvania Department of Environmental Protection (PADEP) has established a COVID-19 webpage, which is intended to provide direction to the regulated community during the COVID-19 pandemic.  Below is a summary of PADEP’s COVID-19 policies.  We will continue to monitor PADEP’s pronouncements and modify this information as it becomes available.  Any questions can be directed to MGKF’s Tom Duncan at 484-430-2358. For updates to click here.

Requesting Suspension of a Regulatory or Permit Condition
PADEP has developed a form which can be used to request a temporary suspension of regulatory or permitting requirements based on circumstances relating to the pandemic.  Examples may potentially include that a stack test cannot be safely completed because it would require a number of individuals to spend significant time in an enclosed area, or where the regulated entity is unable to provide a hard copy of a required submission.

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Construction Insurance in a Time of COVID-19

Smith Currie & Hancock
Ronald G. Robey

March 30, 2020

Introduction. The proverb “may you live in interesting times,” certainly applies today; however, we wish the times were not so interesting. Most contractors are looking to their insurance for possible assistance with the delays, disruptions, and claims arising from the effect of the COVID-19 pandemic on current construction projects. This article provides a summary limited to builder’s risk and to general liability coverages as they relate to the pandemic, and a general warning that insurers appear to be adding endorsements to renewals and extensions of builder’s risk and first-party property policies that would retroactively exclude all claims arising from the pandemic.

The Warning. March 31 of every year is a common time for renewal of builder’s risk (including master policies), first–party property, and inland marine policies. It appears that some underwriters are attempting to add an endorsement as part of the renewal process. The potential endorsement is as follows:

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Temporary U.S. EPA Enforcement Discretion in Response to COVID-19

Baker & Hostetler LLP
Cory Barnes and Martin T. Booher

April 7, 2020

This was originally published by BakerHostetler’s Environmental Blog on March 30, 2020.

On March 26, the U.S. Environmental Protection Agency (EPA) issued a memorandum on the “temporary policy regarding EPA enforcement of environmental legal obligations” given the growing impacts of COVID-19. Citing restrictions such as workforce shortages, travel and social distancing restrictions, and the inability of labs to timely analyze samples and provide results, the EPA recognizes the consequences that these restrictions may have on reporting obligations and milestones set forth in settlement and consent decrees as well as other formal or informal reporting and compliance programs. As such, the EPA is temporarily modifying its enforcement discretion policy for noncompliance as described in the attached memorandum. The summary below provides an overview of the key points addressed in the memorandum.

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Attention New Jersey Soil or Recycle Fill Providers or Brokers: Don’t Miss April 20, 2020 Deadline for A-901 License Registration

Greenbaum, Rowe, Smith & Davis LLP
Daniel Flynn and Barbara J. Koonz

March 30, 2020

Effective January 21, 2020, New Jersey expanded its A-901 licensing law, originally enacted to keep organized crime out of the state’s solid waste business by requiring an A-901 license for businesses that collect, transport, process, broker, store, purchase, sell or dispose of “soil and fill recyclable material.”

Businesses currently providing “soil and fill recycling services” may continue to provide those services while going through the licensing process but must register with the New Jersey Department of Environmental Protection (NJDEP) by April 20, 2020.

If this registration deadline is missed, the business is prohibited from continuing to provide soil and recycling services until it obtains its A-901 license, a process that usually takes at least six months once the fully completed application package has been submitted.

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Environmental Settlements: Force Majeure Claims Related to COVID-19

Sidley Austin LLP
Justin A. Savage, Timothy K. Webster and Samina M. Bharmal

March 13, 2020

This article was originally posted here

Environmental settlements — including everything from judicial consent decrees with the U.S. Environmental Protection Agency (EPA) to administrative consent orders with state environmental agencies — typically contain force majeure clauses, especially where the settlements require performance of work with timing requirements, not just payment of penalties or reimbursement of government costs. Thousands of such settlements are in effect around the United States in all areas and media — site remediation, air, water, waste and natural resources. Given the substantial business disruption being caused by COVID-19 worldwide, companies that are parties to environmental settlements should review those settlements now to understand the circumstances under which force majeure claims may be raised.

Force majeure in environmental settlements. Environmental force majeure provisions typically track commercial force majeure provisions, focusing on whether events beyond the control of a company may contribute or has contributed to a delay in performance. Environmental settlements can depart from the commercial world in that they often impose a litany of process hurdles for invoking force majeure.

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